WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Sunday, March 22, 2009

OBAMA AND THE CONTRACT CLAUSE

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility

U.S. CONST. ART. 1, SECT 10.

In Ogden v. Saunders, 12 Wheat, 25 U.S. 213 (1827), Chief Justice John Marshal wrote in dissent on what drove the framers to write the contracts clause into the Constitution:

The power of changing the relative situation of debtor and creditor, of interfering with contracts, a power which comes home to every man, touches the interest of all, and controls the conduct of every individual in those things which he supposes to be proper for his own exclusive management, had been used to such an excess by the state legislatures, as to break in upon the ordinary intercourse of society, and destroy all confidence between man and man. This mischief had become so great, so alarming, as not only to impair commercial intercourse and threaten the existence of credit, but to sap the morals of the people and destroy the sanctity of private faith. To guard against the continuance of the evil was an object of deep interest with all the truly wise, as well as the virtuous, of this great community, and was one of the important benefits expected from a reform of the government.

That the public bloodlust to terminate the contracts between individuals and AIG has reached into the upper most echelon of the White House is not surprising.

And unfortunately, as altrutist- statists are wont to do, anything and everything is up for grabs when THERE IS AN EMERGENCY.

The clearest indication of this is the Supreme Court's holding in Home Building and Loan Assoc. v. Blaisdell, 290 U.S. 398 (1934) in which the Supreme Court held that:

The economic interests of the State may justify the exercise of its continuing and dominant protective power notwithstanding interference with contracts.

Let us interpret that for you: Contracts are contracts, and the Constitution is the Constitution, and the Constitution forbids state interference with contracts, unless the interests of the state are overriding.

In other words, the Constitution of the United States is not worth the paper it is written on when powerful economic interests or emergencies arise.

Thus in Blaisdell, the court found that 1) "an emergency" existed in Minnesota. 2) The laws enacted (the suspension of the right of a creditor to foreclose on a mortgage) addressed "a legitimate interest of society" (Altruistic collectivism). 3) The relief afforded by the law was justified by the emergency and thus the state acted properly. (Statism).

Blaisdell has been roundly and justifiably criticized, but it is still good law.

So is Wickard v. Filburn, 317 U.S. 111 (1942) holding a farmer could not eat the wheat he grew, and that the Federal Government had the right to say so under the commerce clause, especially when there is an ....(everybody now) EMERGENCY!!!

And that is very bad news for those people who are legitimately owed money during this emergency. That means AIG employees, real estate investors, and anyone else Obama and the Congress decide this emergency covers. And that may mean you someday.

Let's say Florida decided there was "an emergency" and suspended payments on pensions. For all of you who just spent the last 30 years in the REGJB and were expecting a decent retirement- ouch!

But Florida could do it. The Blaisdell opinion says so.

So sit back and hold on to your wallets because the altruist-collectivist-statists are out in force and everything is up for grabs.

20 comments:

Anonymous
said...

One of the following two theories is true:

1. Rumpole is actually more than one person, who obviously have differing political viewpoints.

2. Rumpole is, like too many Americans, a whiner who loves to--and sometimes LIVES to--complain. Bitching and moaning are his/her way of life. Short of massive doses of Prozac, Zoloft or a similar pharmaceutical, nothing will make him/her/it happy.

A profound quote by Brian Tannebaum in the Miami Herald today. Always the politician, our representative in the state capital called proposed legislation to ban depos in 3rd degree felonies 'terrible'.

Wickard v. Filburn, the case holding that a farmer couldn't eat his very own wheat that he grew because the government says so is a travesty in the worst traditions of communism, fascism and totalitarianism, just like the Japanese-Americans internment case. It goes to show you that when there is a perceived emergency the first thing to go out the door is liberty and individual rights and that you cannot count on the courts to uphold the law and the constitution in those emergencies.

How about I, the taxpayer, withdraw my bailout money. Most americans are not sucking from the public teat. When these gentlemen run a private enterprise that does not need to be floated by my tax dollars they can make as many billions as the legitimate market can bear. In the mean time they can do what their victims and rescuers are doing, tightening up belts!

Interesting very recent article in the DBR how some large firm attorneys are serving as volunteer/pro bono SAPDs in County Court. The article mentioned how transactional and commerical attorneys are seeking "trial experience." While I commend these attorneys for volunteering to help out the PD's office in the current financial crisis, nearly every civil attorney I have seen in the REGJB--aside from former ASAs and APDs, of course--has been clueless as to criminal law. Combine that with the ego of many "Big Law" attorneys and you see where this is headed.

Also, since the major issue with the PDs office is ostensibly the lack of attorneys to handle third-degree felonies, will this pro bono project ease the supposed staffing crunch at the PDs office?

rumpole has been hysterical before... but little did we expect hysteria on the topic of aig bonuses, of all things. Ironic since it seems that Obama is gonna cool the jets on the tax bill. I kinda miss the days of the hysterical old man whined about theinability to depose thirty people or a judge who, shockingly, believed a police officer over his client.

Did anyone else hear about the fight in Judge Richard's courtroom this morning? We don't have the specifics, but Ian apparently got off the bench, physically separated the warring couple, and then resumed court without blinking an eye. Never a dull moment in Domestic Violence, as jujitsu Geoff can also tell you.

12:00 PM UPDATE: This is what we're being told: Judge Richards revoked the guy's bond because the victim testified he tried to run her over. The guy goes nuts, and starts pounding on the victim. Richards jumps down to assist the deputies and ASA Andy Newman, and they subdue him. We don't think the victim went to the hospital, and the courtroom was basically empty at the time.

Last week, a jury acquitted the South Florida physician of federal charges he willingly prescribed painkillers like oxycodone to drug addicts.

Now government prosecutors and agents involved in Shaygan's case face their own day of judgment.

During two days of hearings this week, a Miami federal judge forced Shaygan's lead prosecutor and others into the witness chair to defend themselves against allegations of misconduct.

U.S. District Judge Alan Gold hammered the government team for authorizing two witnesses in the contentious drug case to secretly record their phone conversations with Shaygan's defense team.

The recordings of lead defense lawyer David O. Markus and his investigator violated internal policies of the U.S. Attorney's Office and federal evidentiary rules because defense lawyers were not informed of their existence until mid-trial.

Gold is now considering whether the U.S. government should literally pay for the mistake. Federal law allows criminal defendants to recover legal expenses if they can show a prosecution was "vexatious, frivolous or in bad faith."

Sean Cronin, the lead prosecutor, admitted making mistakes, but insisted he did not intend to withhold evidence.

"I simply wasn't thinking," Cronin said.

But Gold said the government's missteps were "more than just mistakes" and should have consequences.

"Important safeguards were not met," Gold said.

Prosecutors had accused Shaygan, 36, of prescribing methadone that caused the overdose death of a West Palm Beach man. He had faced a minimum of 20 years in prison.

Defense lawyers learned of the taping by chance during the first week of trial, when a government witness said that he had recorded a phone call with Markus. Prosecutors then disclosed that they had authorized two witnesses to tape phone calls with the defense team, resulting in two recordings of Markus and one of a defense investigator.

Prosecutors said the defense calls were recorded to look into possible witness tampering, but that no evidence of wrongdoing was found.

Courtney Tucker — the witness who, according to prosecutors, initially complained of intimidation by Shaygan's defense team — this week said she never made such allegations and felt prosecutors tried to twist her words to fit their case.

Gold criticized Cronin and his supervisor, Narcotics Chief Karen Gilbert, for authorizing an investigation into defense lawyers without demanding more evidence or notifying top officials in the U.S. Attorney's Office.

U.S. taxpayers could now wind up footing Shaygan's legal bill.

In an interview, Markus declined to disclose his fees in the case.

But he said, "Litigating a complex federal criminal matter for over a year is very expensive."

Vanessa Blum can be reached at vblum@SunSentinel.com or 954-356-4605.

Federal trial controversy What happened: Federal prosecutors and agents involved in the drug case against Dr. Ali Shaygan authorized witnesses to secretly record their phone conversations with Shaygan's defense team.

Why it matters: The recordings violated government policies and federal evidentiary rules because defense lawyers were not informed of their existence until mid- trial.

What happens next: U.S. District Judge Alan Gold is considering whether the U.S. government should be forced to pay Shaygan's legal fees, which could exceed $500,000. Gold is expected to rule in several weeks.

For the government: Assistant U.S. Attorney Edward Stamm is representing the U.S. Attorney's Office.

11:50 am. Obama and McCain are the same side of the same coin- altruistic collectivist statist. I supported Obama because I believed he would be less beholden to the religious right and their anti-intellectual agenda. I also believed Obama would be more honest with the american people- which he has by among other things including the full cost of both wars in the budgets he has submitted instead of seeking separate funding for the wars and keeping their costs "off budget". I supported Obama because I knew he would undo the rules against stem cell research, which he has done.

I supported Obama because I believed him to be the more competent individual, and I still do. That does not mean that I have to abandon my philosophical beliefs and not write about things I don't agree with when he is doing them.

I am glad I supported Obama but I object to his interference with private contract rights, and if you read the NY Times today you will see that he has backed off his earlier position and let the republicans table the matter in the senate. What Obama said was it's not a good idea to make laws out of anger, and he is right.

Let's start a collection to pay CNN to get rid of Nancy Grace. It seems as if her sole purpose in life is to taint the jury in every case she reports on. Sadly, her obsession with "tot mom" is disturbing at the very least.

The SAPD pro-bono lawyer idea is a well-intentioned, but won't work. The SAO tried that for a short time in circuit court. SASA's handled Arthur Hearings. Those of us who cared about our cases refused to let the private attorneys handle them, predicting (accurately) that they had no idea what they were doing and were doing it for the wrong reasons (ie. trying to get trial experience instead of a real desire to protect the community). The SA ultimately had to kill the experiment. I worry that indigent offenders will receive poor representation from these well-paid, but clueless, civil lawyers.

I was at the meeting last Friday at the Dade County Public Defender's Office for the introduction of the Pro Bono Initiative.

While I understand your concerns, I can tell you that Carlos and his staff are providing all of the necessary resources to these "civil" attorneys for when they actually accept a case and take it into the courtroom.

They are required to attend a course that has already been videotaped by the PD and the cases they are given have been carefully screened before they are handed out to these attorneys.

There is a team of attorneys ready to help in any way they can, from Motion practice to second-chairing a trial, if the case gets that far.

I do agree that while the concept is admirable, in practice it does have to be closely monitored.

With that said, you may have read in the Daily Business Review article on Tuesday, that the Florida Association of Criminal Defense Lawyers will be announcing early next week our own Pro Bono Initiative in conjunction with the PD's office.

Every Board Member of FACDL-MIAMI has agreed to accept at least one third degree felony and we are strongly encouraging all 450 members of our organization to take at least one third degree felony from the PD's office.

We understand that this will only be a "drop in the bucket" when compared to the thousands of cases the office now handles. While it may be symbolic in nature, and not a cure, it is still the right thing to do.

46 years ago, in Gideon, the Supreme Court decided that we should be providing competent counsel to indigent defendants. Senate Criminal Justice Chair Victor Crist and the rest of our elected officials in Tallahassee seem to think that we can continue to fund the building of more prisons and continue to pass more criminal laws and add more crimes to the list of "alphabet soup" enhancements, while continually cutting the budget for the Public Defender and the budget for what is left of the Court Appointed Counsel system.

FACDL-MIAMI supports Carlos Martinez on his Pro Bono Initiative and hopes that all of its members do their share to help the cause.

By the way, BTDT, if you are not already a member of FACDL-MIAMI, please contact me off line so I can send you an application and encourage you to take a case.

What I don't like about the SAPD experiment is that it's only big mega-law firms that are participating -- the ones where these people love spending their time on westlaw and in the law library and couldn't find the courthouse with mapquest and a GPS system. I guess the volunteers can be partly to blame, or perhaps the PD's office for not reaching out to other sectors.

There is a contingency of people out there (myself included) that are formers ASAs/APDs that are now in the civil arena, and do wish to handle the occasional criminal case, but for the most part, can't do it because it's not worth it to have just one or two cases or the firm won't let them. However, if it's under the guise of pro-bono, then the firm will probably let is slide. Howver, the individual could probably care less if its pro-bono, because they just love doing criminal work, although they are not currently doing it for monetary reasons, didn't like their criminal bosses, etc.

This would solve the problem of having these elitist lawyers handling cases just so they can get 'trial experience', even though they have no frigging idea what they are doing. I for one have put my name in the hat.